January 21, 2010

Host: Ted Simons

High Court Campaign Finance Rule

ASU law professor Paul Bender discusses the U.S. Supreme Court ruling that supports a corporation’s First Amendment right to spend unlimited amounts of money to help elect or defeat candidates for public office.

Ted Simons: The United States Supreme Court ruled today that corporations and unions can freely spend their own money to defeat or elect political candidates. Here to talk about the ruling is Arizona State University law professor Paul Bender. Paul, good to have you on the show. Was this -- we've talked about this in the past.

Paul Bender: Yeah.

Ted Simons: This ruling a surprise at all?

Paul Bender: A surprise? No. This case was argued last year before the court on a narrow issue. And the parties just argued that narrow issue. At the argument, the court seemed to express interest in a broad issue. On the last day the term, they set it down for reargument and asked the parties to address whether they ought to overrule the court’s cases in the area of corporate spending in election campaigns and a law that's been there over a hundred years. And the parties argued it. The argument which was in September before the term started because they wanted to get the decision out well in advance of the 2010 elections, it was pretty clear that the court was going to overrule those cases and that they would hold the federal legislation unconstitutional so it doesn't come as a surprise. It's extraordinary behavior for this the Supreme Court, for any Supreme Court, but especially for a Supreme Court that says it is conservative and only moving step by step and doesn't reach out to decide issues. Justice Kennedy's opinion says we're asked to decide whether these -- whether the limits on corporate speech and constitution -- nobody asked them. They asked themselves. They raised this issue in a case that didn't raise the issue and decided to strike down a law that's been in effect for over a hundred years because they think it’s unconstitutional. That's a remarkable thing for a Supreme Court to do.

Ted Simons: What was permitted yesterday and what's permitted today?

Paul Bender: Well, yesterday, there were limits on what corporations could spend of their own money on election campaigns. And election airing advertisements for and against. For example, 30 days before a primary, six days before a general election. Maybe the other way around. I forget. They couldn't issue those kinds of ads. Now the principle of this opinion is you cannot limit corporate speech in election campaigns any more than you can limit individual speech. So just as you, as an individual can spend as much money of your own to support any candidate you want at any time you want, now general motors can do that. Now Goldman Sachs can do that. Now CitiBank can do that. They can take as much money as they like from their corporate treasury and support whatever candidate they want as long as they're independent expenditures.

Ted Simons: With the idea that corporate speech, political speech is the same as individual speech.

Paul Bender: That's what they say.

Ted Simons: What if I'm a shareholder in a corporation and I like candidate X but they want to vote for Y.

Paul Bender: Vote against the board of directors. Sell your stock, that’s their answer. They reject that and say the government has no legitimate interest in trying to protect shareholders from the corporate executives using the money the way they want. They run the corporation, why can't they use it?

Ted Simons: Multicorporations with lots of leadership in other countries.

Paul Bender: That they don't decide. There's been rules against foreign spending in elections and they don't address that issue. So it's still possible that although the theory -- the theory of this is the more speech the better. It doesn't matter who it comes from. So if they really mean that, they would permit foreign corporations and indeed foreign governments to spend money on elections. It's remarkable. Changes everything and has the potentiality of revolutionizing the American political system.

Ted Simons: Explain that, talk more about that because a lot of critics now are saying democracy is going to be flooded now with corporate money.

Paul Bender: It's up to corporations. If General Motors has any money left over -- maybe we should use Ford, because I think they're making money. They are now constitutionally free to spend whatever money is in their treasury that they want in electioneering for any congressional candidate, any senate candidate, any candidate for president, it’s just federal elections we’re talking about but I suppose the same thing applies to state elections. They can do that now. Will they? They haven't in the past because it's been illegal so we don't know whether they will but if they decide to and one would think they would, because currently they spent an enormous amount on lobbying, so why not electioneering? It could revolutionize American politics so money could be even more influential in politics than it does now.

Ted Simons: Does this have in any way a play into Arizona’s clean election fight which we had this week as well?

Paul Bender: Absolutely. Technically, it's a different issue but if the theory of the case -- one of the theories of the case is that you cannot -- not only don't care where the speech comes from, but it's impermissible for government to try and equalize the spending in elections. If they mean that, then that would strike down clean elections as well. And I'm sure this will be argued by the parties in the clean elections case. The side that’s against clean elections will say that this confirms their opposition and the ninth circuit is going to have to deal with that when the case gets up there. But yeah, the theory of this case would say that clean elections was unconstitutional.

Ted Simons: I know some folks say don't forget unions. This opens up for unions to spend as well. But others would argue that unions don't have the same kind of money.
Paul Bender: They don't have the same kind of money but they're entitled to as well. Everybody is, except maybe foreigners. The theory is the more speech the better. How can more speech be bad, says the court. The people are intelligent enough to figure out what they want to do. So the more speech you give them the better off they are.

Ted Simons: But does this open up the idea of a corporation as a -- I mean, you know, I don't want to get absurd here, but corporations can't -- you know, you can't send them to prison. They're not people who can individually do things.

Paul Bender: They can't vote.

Ted Simons: They can't run for office.

Paul Bender: Right.

Ted Simons: So where do we go from here?

Paul Bender: Well, I don't know there's any more place to go except to let foreigners do this. But they -- money is -- if you have money and even if you're not a person, even if you're a corporation, and remember, the money Ford has in its treasury was earned selling cars. Now, Ford's corporate charter said you can't do electioneering, then they can't. So you have money made my selling cars which are going to take by the managers of the corporation, not by a vote of the shareholders, they say this candidate is good for Ford and they'll take $100 million and stick it into ads for their favorite candidate, that's constitutionally protected.

Ted Simons: Will this be considered one of the major decisions by a court in any some odd years?

Paul Bender: This is potentially one of the most important decisions that the court has made in decades. Now, as I say, we don't know how much advantage the corporations are going to take of this. But as I read it and it's 150 pages long and I had a class that ended at three so I didn't have a lot of time to do this, as I read it, I'm looking for ways in which congress could possibly limit it and they don't jump out at me. It may be there's no way. The only way this can be changed. This is maybe the first case where it's clear that -- what difference it made that justice O'Connor was not on the bench.